Introduction

The institutionalization of children and adults with disabilities is a pervasive issue worldwide, including in the European Union (EU). European countries including those constituting the EU have long histories of institutionalizing persons with disabilities, which has, to an extent, persisted until the present day. In the last couple of decades, it seems that mostly countries in eastern and south-eastern Europe have come under heavy scrutiny and criticism from the media and international agencies for the institutionalization of children and adults with disabilities. This was the case due to especially worrisome material conditions in those facilities and the treatment that sometimes amounted to being inhumane, degrading and even considered as torture. Meanwhile, some other EU countries have gone under the radar despite very high rates of institutionalization. For example, the Netherlands, France and Austria have some of the highest rates of institutionalization of children in the world, with high proportions of children with disabilities among them.[1]

The EU concluded the Convention on the Rights of Persons with Disabilities (CRPD) in 2009, which then entered into force in January 2011. This accession was not like many other treaties the EU has acceded to in its history. It is the only United Nations human rights treaty acceded to by the EU (and any other regional organization). By acceding to the CRPD, the instrument became part of EU law and binding to all its institutions, in accordance with article 216 (2) of the Treaty on the Functioning of the European Union (TFEU). In its early case law, the European Court of Justice (ECJ) held that international agreements “form an integral part of the Community legal system” (the EU today).[2]

The main question posed here is: How has the CRPD impacted EU legislation and how have EU institutions interpreted and applied the CRPD, concerning the right to live independently and be included in the community? The question is inspired by the tensions which exist between the CRPD norms and EU actions. The European Commission (EC) has provided financial support to build and expand long-stay residential care in Member States, contrary to the CRPD and the interpretations formed by the Committee on the Rights of Persons with Disabilities (CRPD Committee hereafter) of States’ obligations in relation to article 19 of the CRPD. Several EU countries including Austria, Hungary, Romania, Bulgaria, Estonia and Lithuania have used EU funding to develop residential care that is not conducive to the realization of the right to live independently in the community. The EC has repeatedly justified those actions, while the CRPD Committee expressed concerns over the issue and called on Hungary to reroute EU funds to independent living services instead of the investments in long-stay residential care.[3] Some organizations of persons with disabilities (OPDs) and advocacy non-governmental organizations (NGOs) exerted strong opposition to the actions of the EC and initiated legal actions.

The underlying theory of international law followed here corresponds to the Transnational Legal Process School.[4] This scholarship is focused on the process and reasons of States’ compliance with international law. It duly considers the realities of international law-making, interpretation and internalization reflected in the plurality actors, especially the significance of NGOs (and OPDs) as “transnational norm entrepreneurs”.[5] This reality is evidenced in actions of OPDs and NGOs which have impacted regulation through advocacy and legal actions aimed at improving the law and practice concerning independent living in the community in the EU. (OPDs and NGOs had impacted the content of the CRPD itself as well). It also takes into account factors that influence decision-making, such as in the case of the EC’s approach to complaints on the use of European Structural and Investment Funds (ESIFs), and the strategies of those actors including “avoidance techniques” when responding to those complaints.[6] Legal interpretation is seen as an important factor of “internalization” of international law,[7] hence this paper exhibits an interest in the interpretations offered by the CRPD Committee and the EC of those critical provisions. The author looks into possible future directions and strategies that may improve the implementation of the CRPD in the EU. The framework of the Vienna Convention on the Law of Treaties (VCLT) rules on treaty interpretation, which the EC referred to when responding to complaints, is taken to critically analyse the EC’s actions and interpretations of the CRPD. According to article 31 of the VCLT, the three main elements of treaty interpretation are: the wording, the context, and the object and purpose. Preparatory works that are generated during the treaty drafting phase can serve as a supplemental tool (art. 32, VCLT). Any interpretation should duly consider all three main elements and supplementary means, if necessary. Interpretation of a human rights treaty should ensure that the norm is effective, meaning capable of ensuring real-life enjoyment of the human rights of individuals in given circumstances.[8] An interpretation of the CRPD by the EC is assessed in the light of those rules and principles. Also, an evaluative approach to the content of relevant secondary EU legislation is employed in the comparison with the superior international human rights treaty to assess its compatibility.

This paper is limited to the analysis of legislative acts and case law while excluding EU policy documents. Although non-binding, policy documents can significantly impact the application of EU law and the implementation of the CRPD in EU law. Furthermore, this paper does not address the effects of the CRPD on EU anti-discrimination law, which can be relevant when addressing the practices of institutionalization and segregation of persons with disabilities.